David A. Plymyer: Political, Social & Random Commentary

With the City of Baltimore, be careful about reporting a legal opinion as a fact.

There are many discouraging things about the manner in which the City of Baltimore goes about its business, but right up there near the top of my list is the feckless way that the city manages its relationship with Lodge No. 3 of the Fraternal Order of Police (FOP). The FOP represents the sworn officers of the Baltimore Police Department (BPD) up to and including the rank of lieutenant. I’ve done many pieces on the destructive consequences of the failure of the City Council to use its power under the City Charter to limit the scope of collective bargaining with the FOP and rein in the inordinate power of the union over the governance of the BPD.

A prime example of the city’s fecklessness is the extended controversy over placing up to two voting or nonvoting civilian members on the hearing boards impaneled to hear disciplinary charges against BPD officers as authorized by a change to Maryland law passed by the General Assembly in 2016. The city has been attempting for nearly a year to get the FOP to agree to placing civilians on hearing boards as part of the labor agreement intended to replace the one that expired on June 30, 2016; the city and FOP have been operating without a signed agreement since that time.

I thought I read a few days ago that Mayor Catherine Pugh had decided to abandon the efforts to place civilians on hearing boards through negotiation, and to focus on getting a state law passed that eliminated the alleged need to secure the approval of the FOP to placing civilian members on the boards through negotiation. I couldn’t find the story after a brief search, and I am too tired of this issue to look any further. In any event, I read in a story printed in today’s Baltimore Sun that Mayor Pugh plans to continue to push for inclusion of civilians on hearing boards as part of the ongoing negotiations with the FOP.

The story, written by Kevin Rector and Justin Fenton, also parroted the city’s apparent position that “state law prohibits the city from putting civilians on the boards without the union’s consent.” Just to be clear, gentlemen, that statement is an expression of an opinion, not a fact. And, by the way, it is not the opinion of Assistant Attorney General Kathryn Rowe as described in her letter of advice to State Senator Nathaniel McFadden dated November 4, 2016.

I found Ms. Rowe’s letter after I had a conversation in April with City Councilman Brandon Scott. As I understood the description of his position, it was that the City Council lacked the authority to authorize the Police Commissioner to appoint civilian members of hearing boards because the General Assembly retained control of the Baltimore Police Department (BPD). Mr. Scott told me that this position was based on advice received from the Attorney General.

Mr. Scott said that he would provide me a copy of the advice if it was reduced to writing and he could locate it. I never received anything further from him, so I went looking for the advice myself, and after some effort found Ms. Rowe’s letter. Her advice may not be the same advice to which Mr. Scott referred, because it is different than what he told me.

According to Ms. Rowe’s letter, Senator McFadden requested the AG’s advice based on an op-ed that I wrote in July 2016 urging the City Council to act on the issue. To my knowledge, neither the request nor the letter of advice became a matter of public knowledge – I certainly did not know about the request or letter until I found the letter six months after it was written.

In her letter of advice, Assistant Attorney General Rowe drew the city a road map on how to place civilians on hearing boards without gaining approval to do so from the FOP through negotiation. First, the City Council would have to enact an ordinance authorizing the Police Commissioner to place up to two voting or non-voting civilians on BPD hearing boards under the authority of Section 3-107(c)(3)(ii) of the Public Safety Article, which is a provision of the Maryland Law Enforcement Officers’ Bill of Rights (LEOBR).

Thereafter, the Labor Commissioner could simply refuse to negotiate the issue with the FOP, and the Police Commissioner would be free to exercise his authority to appoint civilian members as authorized by the city ordinance. The authority to appoint civilian members would flow from the ordinance, not from the labor agreement, which would be silent on the issue.

(Skip to the last paragraph on page 5 of Ms. Rowe’s letter if you are not interested in the detailed analysis.)

Of course, there may be another legal opinion out there that I am not aware of. Even if the City disagrees with Ms. Rowe and is queasy about its authority to pass an ordinance as described by Section 3-107(c)(3)(ii) of the Public Safety Article, however, the Mayor should not have gone to the General Assembly this year with the request that she did in the form of SB545/HB1023.

If she had doubts about the accuracy of Ms. Rowe’s conclusions, Mayor Pugh should have asked the General Assembly to clarify that the City Council had the power under the 2016 changes to the LEOBR to decide whether to authorize the Police Commissioner to appoint civilians to BPD hearing boards, and whether to withdraw the subject of civilian participation from collective bargaining. Instead, Mayor Pugh asked the General Assembly to make those decisions for the City Council. It was, to be blunt, a chicken-shit request on the part of the mayor and it was dead on arrival.

By asking the General Assembly to remove the subject of hearing board composition from the scope of collective bargaining rather than empowering the City Council to do so, she was asking state legislators to take on a political fight with the FOP that she and city legislators have no stomach for – and that is never going to happen. The mayor had been informed in no uncertain terms before the 2017 session by an influential state senator not to expect the General Assembly to rescue the city from its inability to solve its own labor relations problems, and SB545/HB1023 went nowhere.

Maybe someone can ask the Mayor and members of the City Council whether they agree with the advice given by Assistant Attorney General Kathryn Rowe and, if so, why they haven’t acted on it. It would be interesting to know whether the city is holding back because of genuine legal concerns, or because of the usual trepidation by city officials about offending the FOP. Given the nature of the legislation requested during the 2017 session of the General Assembly by Mayor Pugh, my money is on the latter explanation.